Case BriefsHigh Courts

Delhi High Court: Sunil Gaur, J. allowed a batch of petitions filed against the trial court’s order whereby the petitioners including Group President of Reliance Industries Public Ltd. and the Vice-President of Reliance Industries Ltd. were put on trial for the offences punishable under the Official Secrets Act, 1923.

On 28-10-1998, the Delhi Police raided the office of Group President of RIL and recovered copies of 4 ‘secret’ documents of the Government of India. The recovered copies related to policy documents related to economy and disinvestment.

It was submitted by the petitioners that the documents in the question were not prejudicial to the security of the State and by merely marking them to be secret, does not bring the documents in question within the ambit of the Official Secrets Act. They contended that the ‘secret’ information was already in public domain, which had been supplied through Government channels and that it was so apparent from the copies of newspaper reports on record.

Referring to Sama Alana Abdulla v. State of Gujarat, (1996) 1 SCC 427 and State (NCT of Delhi) v. Jaspal Singh, (2003) 10 SCC 586 the High Court noted: “A person cannot be put on trial merely because a document has been marked as secret, as it is necessary to see the nature of information contained in it, to find out if any offence under the Official Secrets Act is made out or not.” The Court was of the view that the trial court erred in ignoring the newspaper reports produced on a technical plea of want of proof. It was reiterated that substantial justice cannot be sacrificed on technicalities.

As per the Court, a bare perusal of the statement of the Secretary, Department of Telecommunication, revealed that he was not categoric about the documents in question being prejudicial to the security of the nation. It was further noted that since the documents in question had been already made public, therefore, they lost their confidentiality. The Court was of the opinion that the impugned order suffered from utter non-application of mind, and therefore, the same was set aside. The proceedings against the petitioners were quashed.[Shankar Adawal v. CBI, 2019 SCC OnLine Del 9434, decided on 01-08-2019]

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Supreme Court:  The 3-judge bench of Ranjan Gogoi, CJ and SK Kaul and KM Joseph, JJ has directed the Centre to file response by May 4 to the petitions seeking review of last December’s verdict by which the Court had dismissed the pleas challenging India’s deal to procure 36 Rafale fighter jets from France. The bench did not allow the plea of the Centre that it be granted four weeks time to file its response to the pleas.

The Court has fixed May 6 for hearing the petitions.

Former Union ministers Arun Shourie and Yashwant Sinha and activist lawyer Prashant Bhushan have filed a petition seeking review of the December 14, 2018 verdict of the Court giving clean chit to the Rafale deal. AAP leader and Rajya Sabha MP Sanjay Singh has also filed a separate review petition in the case.

In the verdict, the apex court said there was no occasion to doubt the decision-making process in the procurement of 36 Rafale fighter jets from France and dismissed all the petitions seeking an investigation into alleged irregularities in the Rs 58,000 crore deal. It said,

“We cannot sit in judgment over the wisdom of deciding to go in for purchase of 36 aircrafts in place of 126 and cannot possibly compel the Government to go in for purchase of 126 aircraft.”

The court said there was no substantial evidence of commercial favouritism to any private entity. It aslo said,

Our country cannot afford to be unprepared/ underprepared in a situation where our adversaries are stated to have acquired not only 4th generation, but even 5th generation aircrafts, of which, we have none. It would not be correct for the Court to sit as an appellate authority to scrutinize each aspect of the process of acquisition.”

The Rafale fighter is a twin-engine Medium Multi Role Combat Aircraft manufactured by French aerospace company Dassault Aviation. A deal to procure the jets was signed between India and France in 2015. The delivery is expected to begin in September this year.


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Rafale Deal: SC dismisses Centre’s preliminary objections regarding admissibility of the leaked documents and has held that the documents are admissible

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Ranjan Gogoi, CJ and Sanjay Kishan Kaul and KM Joseph, JJ has dismissed Centre’s preliminary objections regarding admissibility of the leaked documents and has held that the documents are admissible. Joseph, J, wrote a separate but concurring judgment.

CJI Gogoi, writing for himself and Kaul, J wrote,

“even assuming that the documents have not been procured in a proper manner should the same be shut out of consideration by the Court?”

On ‘The Hindu’s’ right to publish the documents in question

the publication of the said documents in ‘The Hindu’ newspaper reminds the Court of the consistent views of this Court upholding the freedom of the press.”

The Court said that no law enacted by Parliament specifically barring or prohibiting the publication   of such documents on any of the grounds mentioned in Article 19(2) of the Constitution has been brought to it’s notice. Hence, the right to such publication is well within the constitutional guarantee of freedom of speech.

KM Joseph, J’s in his concurrent opinion noted

“The documents in question have been published in ‘The Hindu’, a national daily as noticed in the order of the learned Chief Justice. It is true that they have not been officially published. The correctness of the contents per se of the documents are not questioned.”

On alleged violation of Sections 3 and 5 of the Official Secrets Act, 1923

The Court noticed that there is no provision in the Official Secrets Act and no such provision in any other statute by which Parliament has vested any power in the executive arm of the government either to restrain publication of documents marked as secret or from placing such documents before a Court of Law which may have been called upon to adjudicate a legal issue concerning the parties.

Insofar as the claim of privilege is concerned, on the very face of  it, Section 123 of the Indian   Evidence Act, 1872 relates to unpublished public records. Noticing that the three documents have been published in different editions of ‘The Hindu’ newspaper, the Court said,

“the document(s) being in public domain and within the reach and knowledge of the entire citizenry, a practical and common sense approach would lead to the obvious conclusion that it would be a meaningless and an exercise in utter futility for the Court to refrain from reading and considering the said document or from shutting out its evidentiary worth and value.”

On exemption from disclosure under Section 8(2) of the Right to Information Act, 2005

The Court noticed that Section 8(2) of the Right to Information Act contemplates that notwithstanding anything in the Official Secrets Act and the exemptions permissible under sub­section (1) of Section 8, a public authority would be justified in allowing access to information, if on proper balancing, public interest in disclosure outweighs the harm sought to be protected. It said,

“When the documents in question are already in the public domain, we do not see how the protection under Section 8(1)(a) of the Act would serve public interest.”

On potential of the case to threaten the security of citizens

The Court rejected the contention and noted the lines from Kesavananda Bharati  v. State of Kerala, (1973) 4 SCC 225,

“That all Constitutional interpretations have political consequences should not obliterate the fact   that the decision has to be arrived at in the calm and dispassionate atmosphere of the court room, that judges in order to give legitimacy to their decision have to keep aloof from the din and controversy of politics and that the fluctuating fortunes of rival political parties can have for them only academic interest. Their primary duty is to uphold the Constitution and the laws without fear or favour and in doing so, they cannot allow any political ideology or economic theory, which may have caught their fancy, to colour the decision.”

[Yashwant Sinha v. CBI, 2019 SCC OnLine SC 517, decided on 10.04.2019]


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Supreme Court: Making it clear that it will decide first on the preliminary objections raised by the Centre and then go into the facts of the Rafale fighter jet deal case, the 3-judge bench of Ranjan Gogoi, CJ and Sanjay Kishan Kaul and KM Joseph, JJ reserved it’s order on the preliminary objections regarding admissibility of the leaked documents.

Attorney General K K Venugopal had argued that the Government had privilege over documents pertaining to the Rafale fighter jet deal with France and that no one can produce them in the court without the permission of the department concerned. He referred to section 123 of the Evidence Act and provisions of RTI Act and said that no one can publish documents which relate to national security as the security of the State supercedes everything.

Advocate Prashant Bhushan, one of the petitioners seeking review, opposed the submission and said that the Rafale deal documents, which AG says are privileged, have been published and are already in public domain. He said that provisions of RTI Act say public interest outweighs other things and no privilege can be claimed except for documents which pertain to intelligence agencies. He also argued that the Press Council of India Act provides provisions for protecting sources of journalists.

In the case that has become a high voltage Courtroom drama, the government told the Court last week that documents related to the Rafale fighter jet deal have been stolen from the Defence Ministry. The Hindu newspaper had published articles on the Rafale deal that were allegedly based on the said documents.

The Hindu Publishing Group Chairman N Ram said those documents were published in public interest as the details of the Rafale deal were withheld or covered up. He said:

“You may call it stolen documents…we are not concerned. We got it from confidential sources and we are committed to protecting these sources. Nobody is going to get any information from us on these sources. But the documents speak for themselves and the stories speak for themselves.”

Yesterday, the Court had allowed the Defence Ministry to file an affidavit in the matter.

(With inputs from Business Standard)

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Supreme Court: The Court has allowed the Defence Ministry to file an affidavit in the Rafale Deal case that will come up for hearing tomorrow.

In the case that has become a high voltage Courtroom drama, the government told the Court last week that documents related to the Rafale fighter jet deal have been stolen from the Defence Ministry. The Hindu newspaper had published articles on the Rafale deal that were allegedly based on the said documents.

The Hindu Publishing Group Chairman N Ram said those documents were published in public interest as the details of the Rafale deal were withheld or covered up. He said:

“You may call it stolen documents…we are not concerned. We got it from confidential sources and we are committed to protecting these sources. Nobody is going to get any information from us on these sources. But the documents speak for themselves and the stories speak for themselves.”

The AG submitted that the documents were marked secret and classified and are therefore in violation of the Official Secrets Act. He also told the Supreme Court that the Rafale case pertains to defence procurement which cannot be reviewed judicially.

AG told the Court that every statement of the court made in the Rafale case may be used to destabilise either the government or the opposition and therefore court should refrain from making it.

CJI asked AG:

“if an act of corruption is committed in Rafale deal, will Govt take shelter behind Official Secrets Act? I am not saying it is committed, but if it is then government cannot take shelter behind OSA.”

The Court said that it been has settled in a catena of judgments that even if stolen documents are cited, and if they are found relevant, the court can look into them.

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Supreme Court: The government has told the Supreme Court that documents related to the Rafale fighter jet deal have been stolen from the Defence Ministry. The Hindu newspaper had published articles on the Rafale deal that were allegedly based on the said documents.

Attorney General KK Venugopal told the Court that those who put documents on the Rafale deal in the public domain are guilty under the Official Secrets Act as also contempt of court.

However, The Hindu Publishing Group Chairman N Ram said those documents were published in public interest as the details of the Rafale deal were withheld or covered up. He said:

“You may call it stolen documents…we are not concerned. We got it from confidential sources and we are committed to protecting these sources. Nobody is going to get any information from us on these sources. But the documents speak for themselves and the stories speak for themselves.”

The 3-judge bench of CJ Ranjan Gogoi and SK Kaul and KM Joseph, JJ was hearing a batch of petitions seeking a review of its December 14 verdict dismissing all the pleas against the deal procured by India from France.

Former Union ministers Yashwant Sinha and Arun Shourie and advocate Prashant Bhushan, who had jointly filed the petition, alleged that the Centre suppressed crucial facts when the apex court decided to dismiss the batch of PILs.

When Bhushan referred to an articles written by Ram, AG said the write-ups were based on stolen documents. He also told the Court that an FIR has not been registered so far into the theft of documents.

The AG submitted that the documents were marked secret and classified and are therefore in violation of the Official Secrets Act. He also told the Supreme Court that the Rafale case pertains to defence procurement which cannot be reviewed judicially.

AG told the Court that every statement of the court made in the Rafale case may be used to destabilise either the government or the opposition and therefore court should refrain from making it.

CJI asked AG:

“if an act of corruption is committed in Rafale deal, will Govt take shelter behind Official Secrets Act? I am not saying it is committed, but if it is then government cannot take shelter behind OSA.”

The Court said that it been has settled in a catena of judgments that even if stolen documents are cited, and if they are found relevant, the court can look into them.

When AG said that any order to the effect would be damaging to the country as the recent incidents have shown how vulnerable is the scenario in which the country was trying to meet its defence requirements, the Court said that the issue of national security did not arise in the case as allegations were of grave crime of corruption.

The Court will next hear the matter on March 14.

(Source: PTI)